ust
days after the crowds of the World Cup frenzy, it seems strange that
another type of crowd should gather so quickly, one that seems to
involve every one of us. At the centre of the storm is an unlikely icon,
a lone man whose diminutive build belies the enormity of his moral
stature.
His cause is deceptively simple: he wants to rid
India of corruption. The Jan Lokpal Bill is his vehicle. Across the
country, all manner of people, from students to corporates and film
actors, have joined his cause and climbed aboard: emails, SMS messages,
every manner of communication is being used. Whether Anna Hazare’s
chosen means of protest – the fast to death – is right or wrong is
irrelevant in the present context; that debate has no easy resolution.
It is true that being prepared to die for a cause does not of itself
make the cause just; it merely shows fixity of purpose, not legitimacy.
The one thing the protest and fast do is to send a
message to the government: the people of India will no longer tolerate
the continued venality that now pervades public life. The people’s anger
is enormous, the frustration deep. The government needs to listen, and
listen closely. Hazare is not some irrelevant eccentric who can be
ignored; and this outpouring is something real, something tangible. It
is a fire, it is spreading and it will not be easily put out. Whatever
your view on Anna Hazare’s protest method, there is no doubt that he has
caught the imagination of the country in a manner we have not seen
perhaps since the emergency.
There are things yet that can be achieved. Ducking
the question won’t work. Nor will the usual UPA-II cha-cha-cha (first,
go on television and blame everyone else; then dig your head in the sand
and pretend the problem doesn’t exist). People everywhere are fed up of
the self-serving, self-righteous, smug and complacent Congress-led
government with its apparently inexhaustible capacity for corruption.
Yes, the movement needs the widest possible support; no, government
vacillations will not do.
But we should be cautious lest we be branded the
fools who rushed in. What is it precisely that the country seeks? At its
simplest (and most simplistic), the demand is for greater accountability
in public and civic affairs and an institutionalised redressal mechanism
for corruption. There can be no argument with that.
Essentially, the demand is for an ombudsman (lokpal).
The word is of Scandinavian origin, from the Old Norse, and refers to an
official whose job it is to investigate complaints from the public
against government officers. What the movement demands is several things
all at once, a sort of governance bhelpuri. First, that the bill
be redrafted with 50 per cent of the contributors drawn from civil
society. Whether this is possible or even practical is another matter.
Despite all appearances to the contrary in some of our latter-day laws,
drafting a statute takes some special skill.
Second, the movement’s current leadership seeks
sweeping powers for the Lokpal: the power to prosecute, police powers;
an omnibus jurisdiction over all limbs of government, including the
judiciary; complete independence, even from the Supreme Court; the right
to investigate all kinds of government spending; and even its own fund.
These are the waters that are treacherous.
The suggestion is that the Lokpal will be the
guardian, the conscience-keeper of the nation. The Lokpal will be pure
of heart and beyond all reproach. Who will choose him? Not, as in
Scandinavia, the government but retired judges and, as one draft
suggested, recent international award winners. But Nobel Prizes and
Magsaysay Awards are no guarantees of incorruptibility. The entire
movement is predicated on a single faulty assumption: that there is no
one in government, the executive, the bureaucracy and the judiciary who
can be trusted. Therefore what this model envisages is the creation of
an extra-constitutional fourth super-limb of government, one to which
all other limbs are subject. What the model implies is
dysfunction: no judge, no bureaucrat and no minister ever able to work
without fear of some disgruntled citizen (of which we have no shortage)
making a complaint. The prime minister and the chief justice of India
are subject to the Lokpal’s whip; and the Supreme Court is sought to be
straitjacketed in matters relating to the Lokpal. The so-called
“people’s Bill” isn’t just disingenuous; it is downright batty.
It also raises a very disturbing question, one that
features in the Platonic ideal of the perfect society with its four
classes of labourers, slaves, tradesmen and guardians. The guardians
protect the city. Socrates is asked the question that was later pithily
phrased by the Roman poet Juvenal in his versified social history:
quis custodiet ipsos custodes? Who will guard the guardians? The
answer is that in a civilised society, there is no need to guard
the guardians who will guard themselves against themselves. Why? Because
these are the best and it is their duty to protect the weak and because
they live this “noble lie” without taste for power or privilege.
Is such a thing even possible? Yet the Jan Lokpal
Bill suggests precisely this, and has no answer to this fundamental
question. Version 2.1 of the Jan Lokpal Bill seems to contain no
safeguards in this direction. What it does have are provisions
that are frightening in their sweep:
“19A. Punishments for offences: For offences
mentioned in Chapter III of the Prevention of Corruption Act, the
proviso to Section 2(4) of this act and Section 28A of this act, the
punishment shall not be less than two years of rigorous imprisonment and
may extend up to life imprisonment.
“Provided that if the accused is an officer of the
rank of joint secretary or above or a minister, a member or chairperson
of the Lokpal, the punishment shall not be less than ten years of
imprisonment.
“Provided further that if the offence is of the
nature mentioned in the proviso to Section 2(4) of this act and if the
beneficiary is a business entity, in addition to other punishments
mentioned in this act and under the Prevention of Corruption Act, a fine
amounting to five times the loss caused to the public shall be recovered
from the accused and the recovery may be done from the assets of the
business entity and from the personal assets of all its directors, if
the assets of the accused are inadequate.”
Read this with Clause 27(2):
“(2) No proceedings of the Lokpal shall be held to be
bad for want of form and except on the ground of jurisdiction, no
proceedings or decision of the Lokpal shall be liable to be challenged,
reviewed, quashed or called in question in any court of ordinary civil
jurisdiction.”
Other than an internal appellate procedure, there is
no further recourse to a court of justice. Clause 26 is a half-hearted
attempt to provide for complaints against officers or employees of the
Lokpal. All these are to be decided by the Lokpal itself. Clause 7 says
that the chairman of the Lokpal can only be removed by filing a petition
before the Supreme Court; and here the Supreme Court is sought to be
tied down hand and foot as to what it can and cannot do (including a ban
on the Supreme Court dismissing the petition at the threshold). These
petitions must be heard by a five-judge bench of the Supreme
Court. Why this should be, we are not told.
Clause 19B allows the chairperson of the Lokpal to
investigate any allegation of corruption against a sitting judge of any
high court or the Supreme Court and even to launch a prosecution. But
high court and Supreme Court judges are appointed under the Constitution
and can only be impeached by Parliament. So this bill allows prosecution
of a sitting judge but cannot remove him so he continues to function
until impeached while his prosecution is going on. And, of course, the
‘prosecution’ will be in regular courts where appeals will be taken up
in the normal channels. This is a nightmare straight out of Kafka. How
will any of this work? The Lokpal is super-cop, super-judge,
super-parliamentarian. Idealism has its place but untempered by reality
it makes for dangerous games. When we vest such terrible power in the
hands of a select few, we should be afraid. We might wind up unleashing
a monster, one not easily caged.
Yes, we need guardians and conscience-keepers; but
they too must be subjected to scrutiny as everyone else. Consider the
alternative of having guardians without accountability. History provides
us with many names that fit this description. The list is long, from
Caligula to Pinochet and Eichmann and beyond, and it is not pretty.
Because of who the guardians are, or will become, we must retain the
means to guard against the guards themselves, to prevent them from
becoming despots and tyrants, corrupted by such absolute power.
We do have a way to do this and it is called judicial
review. This is the rudder that keeps the ship of state on an even keel;
in law, it is as old as the hills; and in sum and substance this is what
the Jan Lokpal Bill tries to dislodge. The Jan Lokpal Bill is necessary;
just not in the present form. That is not the road to salvation; it is
the path to anarchy, despotism and finally perdition.
(Gautam Patel is an advocate, Bombay high court. This article
was posted on his blog, Prisoner Of Agenda, on April 8, 2011.)
Courtesy:
www.prisonerofagenda.com
